Obama not even pretending he has legal authority to delay the ObamaCare employer mandate

posted at 5:21 pm on July 29, 2013 by Allahpundit

Via Byron York, an amazing bit buried in the NYT’s interview with The One after his economy-speech snooze last week. This is as close as you’ll ever get to seeing a pol answer a reporter’s question with “because I said so”:

NYT: People questioned your legal and constitutional authority to do that unilaterally — to delay the employer mandate. Did you consult with your lawyer?

MR. OBAMA: Jackie, if you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security –

NYT: No, but specifically –

MR. OBAMA: — but where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don’t have some folks in Congress who say that I’m usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don’t think that’s a secret. But ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. And if I can take steps on their behalf, then I’m going to do so. And I would hope that more and more of Congress will say, you know what, since that’s our primary focus, we’re willing to work with you to advance those ideals. But I’m not just going to sit back if the only message from some of these folks is no on everything, and sit around and twiddle my thumbs for the next 1,200 days.

Evidently if Congress doesn’t do what he wants, he enjoys legal authority under the Doin’ Good For The People Clause of the Constitution to do it himself. That’s not the first time he’s invoked that clause either; remember, he decided to continue his intervention in Libya even though his own lawyers concluded that he had no power to do so under the War Powers Act. There, as here, people on his own side of an issue reached a legal judgment — it was a party-line Democratic vote that passed O-Care into law, of course — and Obama eventually decided that because the law interfered with his policy preferences, he’d quietly ignore it. In the case of the War Powers Act, there was at least a halfhearted attempt to square the Libya intervention with the statute (by insisting that it didn’t quite rise to the level of “hostilities” in the meaning of the law). Here there’s none. He’s telling you to shut up and trust him because suspending the mandate is good policy and because he is, unlike many members of Congress, a lawyer. (More than half the Senate are lawyers, in point of fact.) Let’s hear from another lawyer, former appellate judge Michael McConnell, on why O’s unilateral suspension of the mandate is so novel and dangerous:

The Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to “refuse to enforce a statute he opposes for policy reasons.”…

The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week’s suspension of the employer mandate.

Republican opponents of ObamaCare might say that the suspension of the employer mandate is such good policy that there’s no need to worry about constitutionality. But if the president can dispense with laws, and parts of laws, when he disagrees with them, the implications for constitutional government are dire.

If Bush pulled the “because I said so” shtick in defending his own decision not to enforce a statute, Senator Obama would have screeched about it endlessly, just like he screeched about executive overreach, signing statements, drone warfare, domestic surveillance, and all the other supposed ills of the Bush age that he’s ended up adopting. As it is, McConnell’s skeptical that any private citizen has standing to sue to enforce the mandate, for the same reason that citizens lacked standing per the Supreme Court’s decision in the Prop 8 case. Maybe Congress could sue, but the GOP doesn’t want to be seen as forcing the employer mandate on business when Obama’s trying to suspend it and Democrats don’t want to cause political headaches for O, let alone side with a stupid health-care measure that’s apt to have adverse economic consequences once it’s in effect. He’s going to get away with this and the precedent will be set — or rather further cemented, per McConnell’s other examples of Obama power grabs — that when a law is inconvenient for the president politically, even when it’s part of his own signature legislation, he can simply ignore it. Because he says so.

Blowback

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We haven’t been a nation of law since JFK was killed. Nixon doing away with the last vestiges of the gold standard really was the last nail in the coffin – we haven’t had anything close to limited government since. But if you want to get really technical; the American experiment died Marbury v. Madison.

If Bush pulled the “because I said so” shtick in defending his own decision not to enforce a statute

“… where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.”

Except that Congress is not unwilling to act. The House passed a bill, H.R. 2667, to delay the employer mandate. If Obama wants this delay to go into effect, he should call Harry Reid and ask him to get the Senate to pass the bill too, and no doubt it would pass by a large margin. (Republicans would support it because they like the idea of delaying Obamacare mandates, and most Democrats would support it because it would fulfill what Obama wants to do.)

if only reagan had thought of this with iran contra. rather than ignorance real or contrived, or plausible deniability. boland amendment? i dont particularly like it, so i unilaterally am suspending it. eat me, tip. but then we would never have seen ollie destroy dims live on tv. good times.

He’s going to get away with this and the precedent will be set — or rather further cemented, per McConnell’s other examples of Obama power grabs — that when a law is inconvenient for the president politically, even when it’s part of his own signature legislation, he can simply ignore it. Because he says so.

It couldn’t possibly be because the GOPe and the GOPe-media are spineless when it comes to the idea of taking this to the Supreme Court on an expeditied basis under the separation of powers defined in the Constitution ???

I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. And if I can take steps on their behalf, then I’m going to do so.

As it is, McConnell’s skeptical that any private citizen has standing to sue to enforce the mandate, for the same reason that citizens lacked standing per the Supreme Court’s decision in the Prop 8 case.

To have standing, you have to be injured or potentially injured. In Prop 8, the proponents could prove neither, but if an employee is forced onto the exchange next year and has an out-of-pocket expense that he would not have had if the employer mandate had been in place, then he very well may have standing.

And if Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case.

That’s it in a nutshell right there. Obama is basically telling the GOP he knows they’ll never go after him on this(and it’s a foregone conclusion the Dems don’t care), so he’ll do whatever he damn well pleases.

He’s going to get away with this and the precedent will be set — or rather further cemented, per McConnell’s other examples of Obama power grabs — that when a law is inconvenient for the president politically, even when it’s part of his own signature legislation, he can simply ignore it. Because he says so.

That’s the scary part. It’s not like he hasn’t ignored laws before(DOMA comes to mind), but delaying the mandate unilaterally the way he has makes me very nervous about the remainder of his Presidency.

Let’s say Obama doesn’t pull off the miracle of winning back the House for the Dems in 2014(right now, they’re gonna struggle to hold onto the Senate). If he’s still polling in the low-to-mid 40′s in his last 2 years, hold one or possibly no chambers of Congress, and is overshadowed by the 2016 Presidential campaign and effectively rendered a lame duck, will he start issuing illegal executive orders right and left(or left and left in his case) and dare Congressional Republicans to challenge him? What’s next? Amnesty by executive order? Bailing out every blue city and state that’s broke? Where does it end?

If Congress (or the people, I suppose) think he’s usurped authority not given the presidency, we can always take action to oppose the tyranny. That’s what he said, and if Congress won’t do it they can just get used to being subservient.

This is the Rubicon. Obama says it and he’s right: accept his rule or don’t, but he’ll only care about divert invent opinions if those opinions prevail over his own. Shut up, he said, and be thankful you aren’t in jail I guess.

It would be so nice if about 50 million of us decided to take the same approach and simply not pay our income taxes for the rest of this year and in 2014, since not doing so would certainly help “the middle class” and in a very concrete way.

As long as the GOP’s response to actions like these is “Whatever…” he’ll continue to do them. But mark my words: This will only work with liberal Democratic presidents. If a Republican tried it, he would be impeached within 24 hours.

“… where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.”

Except that Congress is not unwilling to act. The House passed a bill, H.R. 2667, to delay the employer mandate. If Obama wants this delay to go into effect, he should call Harry Reid and ask him to get the Senate to pass the bill too, and no doubt it would pass by a large margin. (Republicans would support it because they like the idea of delaying Obamacare mandates, and most Democrats would support it because it would fulfill what Obama wants to do.)

J.S.K. on July 29, 2013 at 5:30 PM

Well that’s where politics comes into play. Remember when Obama instituted a defacto Dream Act via executive order last year? Rubio at the time was working on actual legislation in the Senate that would’ve likely passed both chambers and wound up on Obama’s desk before the election. But Obama nixed it by going into dictator mode in order to deny Rubio credit for the bill and have the “Republicans hate immigrants” BS talking point at his disposal in 2012.

This is just history repeating itself. Obama knows the Dems are in big trouble with health care in 2014. This allows them to mitigate the damage at least a little. The mandate gets delayed a year(wanna bet it lasts longer than that?) which limits the job losses before next November and Obama even gets to claim credit for it(never mind that he signed the monstrosity into law to begin with).

The woman was arrested in the area of the cathedral shortly after the paint was found, Assistant D.C. Police Chief Peter Newsham said. Investigators were hoping to question her about the vandalism on the Mall, including at the Lincoln Memorial, but a language barrier delayed the interrogation, Newsham said.

This says a whole lot about the Statists on both sides of the Governance Party.

We know that Obama is, literally, a tyrant who only is waiting the opportunity to build a more perfect GULAG. We know the Democrats will support him all the way. That is a given.

On the other side, there is the matter of the “dog that did not bark”. Not one, not a single one, of the Institutional Republicans has lifted a finger to defend the Constitution. The fictional Doin’ Good For The People Clause of the Constitution needs to have a stake driven through its heart. But the Republicans weigh the political convenience of doing nothing as being worth far more than the Constitution they perjured themselves to swear to defend.

Funny thing about this country in the last few years. It seems that the only people who have standing to go to court against the regime are those who benefit from not going to court against the regime.

The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week’s suspension of the employer mandate.

The 84 IQ dog-eating retard should have been impeached (and later tried criminally) for all of those and more. He has committed upwards of 70 clearly impeachable acts as he has done his best Sukarno impersonation. Barky should have been impeached his first day in office owing to his crimes from the 2008 campaign, including the most repulsive (and highly illegal and un-Constitutional) act in all of American political history when he held the largest political rally of his pathetic campaign in a friggin foreing nation … for friggin foreigners … paid for in part by a friggin foreign government. Add to that his lies about the ACORN GOTV funding (they called it “lighting expenses” … oops!) and the intentional turning off of the AVS on his campaign credit card transactions in order to allow totally anonymous donations from anyone, anywhere and you have an illegitimate term that should have been stillborn, with Barky outfitted for a nice orange jumpsuit and put away for a long time.

But … he was allowed to get away with all that and then he was allowed to go on and commit un-Constitutional and criminal acts every couple of weeks – literally. He was allowed to extort money from BP in the Oval Office (that was a real peach), to fire AGs who got too close to his criminal buddies in government, to go to war anytime he wanted or anytime the French told him to, to let terrorist prisoners go (Al Megrahi) in order to help sell air defense systems to Libya which he later personally went to war against claiming the need to neutralize their air defenses which then happened to include jeeps with machine guns on them on the ground, setting up Americans for death in Benghazi, lying about it and covering it up as he danced on their coffins … and on and on and on. I could continue with the list of impeachable acts of this retarded Sukarno knock-off for days. But, the GOP has been too cowardly to do anything about any of it. The Senate GOP couldn’t even fight the nomination of a wise Latina based on her “empathy” – an attitude totally against all Western jurisprudential history going back over three millenia – and the fact that she was an idiot of the first order.

Oh well. America is dead and buried … “What difference, at this point, does it make?!?”

Remember the “Line Item Veto Act of 1996″? The Supremes declared the law unconstitutional in 1998. How can this “ignore the law veto” possibly be constitutional if the “Line Item Veto” law (which was passed into law by both houses and signed by a sitting president) is unconstitutional?

Well, Boehner did say that it wasn’t fair for the president to champion the rights of big business – but dump on individuals by failing to delay the individual mandate.

And that was it. Complete silence after that. How’s that for Republican leadership? Trample the Constitution all you want.

Hill60 on July 29, 2013 at 5:46 PM

The Republicans are as much a part of the problem as Obama. If they had any real problem with Obama and what he is doing we would know about it. We heard their ‘concerns’ about amnesty, Sarah Palin, and the need to raise the debt ceiling, but they are silent on Obama’s behavior.

“… where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.”

Except that Congress is not unwilling to act. The House passed a bill, H.R. 2667, to delay the employer mandate. If Obama wants this delay to go into effect, he should call Harry Reid and ask him to get the Senate to pass the bill too, and no doubt it would pass by a large margin. (Republicans would support it because they like the idea of delaying Obamacare mandates, and most Democrats would support it because it would fulfill what Obama wants to do.)

J.S.K. on July 29, 2013 at 5:30 PM

He won’t call Harry. He wants the precedent set that he can do what he wants. The Repubs are in a corner on this.

Or is that another one of those words you think you know but you really don’t.

jdpaz on July 29, 2013 at 5:55 PM

I mentioned that yesterday. This idiot was an editor – THE editor – of the Hah-vahd Lawn Review (LOL) and he can’t even speak English. It would be funny if it weren’t so friggin dangerous and destructive. And there are still morons around who try to act as if Barky has more than two brain cells in that empty head of his.

The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion.

An unconstitutional exercise, according to the federal court who reviewed the action and held it invalid. But then, I guess that federal judge was not a “constitutional lawyer” either, right Obama? Or at least, not the non-practicing kind that Barry was.

Those who can, do.

Those who can’t, teach.

Those who can’t do or teach, run for political office.

Hey Barry, since you’re such a constitutional expert, how about directing us to some of the greatest constitutional law cases you tried as a lawyer? Oh that’s right, there are none. Then maybe you could direct us to some of your fabulous scholarly publications on important constitutional issues? Oh that’s right, there are none. Then perhaps you could direct us to some of the many key Supreme Court cases you’ve argued and won. Oh that’s right, there are none.

The only place Obama has ever been a constitutional lawyer is in his own imagination.

Obama knows no one is going to stop him. If there weren’t turncoat and spineless Republicans in Congress, he might have thought twice. But they’ll cave or give him a pass fast as any Democrats would.

Liam on July 29, 2013 at 5:46 PM

If our elected representation is going to let him get away with this, why isn’t there more action to stop him at a grass-roots level? I enjoy these forums, but they do seem to be a place where complaints are aired, yet nothing gets done. This is what most politicians in this country counts on, the narod doing nothing, but sitting back, drinking their vodka, arguing over football, and remaining ignorant of what their government and the apparatchiki does.

You’re either for taking action and removing these scum (King Barack included), or against. There is a reckoning coming, and squishes won’t get to slip between the cracks.

Some of those folks think I usurp my authority by having the gall to win the presidency. And I don’t think that’s a secret. But ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

I take refuge in bitter satirical humor (making me a leading fan of Mark Steyn) and Obama’s “constitutional” lawyer reference reminds me of a classic line from a classic Nichols and May sketch in which a guilt-inducing classic Jewish mother reduces her rocket-scientist son to jelly for not calling her often enough.

Mother: That is just what he said to me, Arthur, and that man is a doctor!

Obama fans: And that President is a constitutional lawyer.

Give me a break. Oh, and I wish Obama were factually correct about “few” of them being lawyers. We could use a lot fewer lawyers.

For certain, no Pub. politician will EVAH have as much usable power as Obama or Shillary. Well, make that ANY Dem. POTUS, Sen. Majority leader or Speaker of the House. To have usable power, you must have 2 things:

Complain about the mandate. Mandate stopped or delayed. Complain about it being delayed.

Insert whatever your issue of the day is, rinse, and repeat.

Tah-dah!!! You have politics in America. Where it means nothing and the only goal is to dupe enough useful idiots on either side of the spectrum in order to get them to vote you in as the man behind the buttons. So…. You can do the same thing, and we can all just switch sides again and wash, rinse, and repeat, ad infinitum.

But there’s not an action that I take that you don’t have some folks in Congress who say that I’m usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don’t think that’s a secret. But ultimately, I’m not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

Haha! Is that the world’s smallest violin I hear? Not only is he playing the race card with that woe is me crap, he has the gall to throw out the constitutional lawyer one, too. So, everything he does is A-OK, because, you know, he studied the Constitution and stuff.

I take refuge in bitter satirical humor (making me a leading fan of Mark Steyn) and Obama’s “constitutional” lawyer reference reminds me of a classic line from a classic Nichols and May sketch in which a guilt-inducing classic Jewish mother reduces her rocket-scientist son to jelly for not calling her often enough.

Mother: That is just what he said to me, Arthur, and that man is a doctor!

Drained Brain on July 29, 2013 at 6:21 PM

“By your father you’re a president, by your mother you’re a president, but by a president you’re no president.”

More Jewish humor. Did you ever notice how Jewish humor is structured to put morons in their place in a nice way? My mother used this type of humor to gently force me into humility when I was a child. Too bad Obutthead’s mother was not a Jewish mother.

Argue FOR insurance mandates for at least a decade. When the “other guy” enacts them, suddenly decide they are the worst, most unconstitutional, and nation destroying thing that could ever be come up with by someone so vile as to demand that everyone carry their own health insurance.

THEN complain about it being delayed/stopped when a hold is put on it.

Whatever position you opposition in power takes, always take the contradictory one, no matter what, even of it was your idea in the first place. Run a little theater. Pump up your ditto heads on either side. And voila! You have an electoral strategy, or rather THE electoral strategy, in our one party system with two branches.

June 24th 1996 SCOTUS renders a 6-3 opinion striking down the line item veto. Justice John Paul Stevens wrote for the majority. Such line-item vetoes are “the functional equivalent of partial repeals of acts of Congress,” he said. But “there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes”

Obama’s action has already been adjudicated and found unconstitutional. But it is up to the Republicans in Congress to challenge him.

The very law that Obama signed requires the employer mandate to go into effect on 1 January 2014.
Period.
Story.
End of.
Resist We Much on July 29, 2013 at 6:42 PM

Haha!

There’s ALWAYS a rationalization. Always a reason to stay locked into the narrative and ignoring the larger picture surrounding it. Always.

You’re right, of course. The law that Obama signed requires that the employer mandate go into affect on January 1st, 2014. And that does not affect, challenge, nor alter, in any sort of way whatsoever, a single part of my original posts.

It is in fact irrellevant to the point I was making, no? When you read it again?

But of course, keep on keeping on though. I know you’re completely honest and genuine when you say its cause your so upset at the whole idea of piece legislation not being fully enforced by the Executive Branch. As its SO rare, both historically AND recently.

But of course, keep on keeping on though. I know you’re completely honest and genuine when you say its cause your so upset at the whole idea of piece legislation not being fully enforced by the Executive Branch. As its SO rare, both historically AND recently.

He has SAID numerous times that running the country would be easier if he was a dictator….

…ignored.

He has VIOLATED both the Constitution and US Law as he has seen fit to push his Socialist agenda, even going as far as creating a new set of ‘Rights’ that only apply to Illegals…

…ignored.

He has turned the nation into his own Banana Republic Police State, as we have seen in Congressional Committee hearing Investigations, by using the IRS, ATF, EPA, & even DHS to target his political ‘Enemies’ who jeopardized his re-election chances and has argued that EVERY American citizen is considered to be a threat to the nations as we have all been included in a blanket subpoena that allows the collection of all of our personal information as part of the ‘War on Terror’, a ‘war’ Obama has told us for 2 years no longer exists.

…ignored.

He has even abandoned Americans to die at the hands of terrorists and has aided in the cover up just to hide the fact that his inexperience and poor decision-making is not only inept but also deadly AND to escape taking responsibility for ANYTHING to date.

…being ignored.

NOW he has the unbelievably lack of class, morals, ethics, and integrity as to call the deaths of over 300 people – to include a dead US BPA – due as a result of Fast-And-Furious, as to tell the families of Ambassador Stevens and 2 other Americans he d=betrayed & left to die in Benghazi, as to call the targeting, intimidating, and spying on Americans ‘PHONY SCANDALS’!

I’m thinking sooner rather than later there’s going to be a defining moment of some kind on the Federal government’s over reach. Either the SCOTUS is going to jerk on someones leash. Hard.

Or one of the state nullification laws is going to precipitate a confrontation. I can envision a state Ok. Tx. etc. arresting Federal authorities. This “because I can” and “the law is what I say it is” is a game two can play at.

A side point to this is what kind of observations and conclusions SCOTUS is making as Obamacare’s ticking time bomb makes it’s way to the court. The law is being challenged on a reading of the plain text prohibiting the payment of subsidies through Federally operated exchanges.

The IRS took it upon itself to decide it was OK. Is Obama saying he’s a law unto himself making for good relations with the court? If he loses the decision will gut Obamacare. Only seventeen states chose to operate their own exchanges.

If just one Republican should try to stop this latest crime by the President, the most honorable turd McCain would quickly chastise any disruptions with the comment, ” that’s not how things are done in Washington”. Our country is so finished. It is truly sickening.